Citation Nr: 1504743
Decision Date: 02/02/15 Archive Date: 02/09/15
DOCKET NO. 12-27 874 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUE
Entitlement to an effective date prior to June 11, 2010, for the grant of entitlement to individual unemployability ("TDIU").
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
K. Anderson, Associate Counsel
INTRODUCTION
The Veteran had active military service from August 1965 to August 1968.
This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
FINDINGS OF FACT
1. The Veteran filed a claim for individual unemployability on August 3, 2009.
2. On September 25, 2009, the RO denied the Veteran's claim for individual unemployability because there was no evidence submitted that he was unable to work.
3. The Veteran submitted evidence to support his claim within the one year time period, evidenced by a VA-Form 21-8940 received by the RO on June 11, 2010.
4. In an August 2010 rating decision, the RO granted entitlement to TDIU with an effective date of June 11, 2010.
CONCLUSION OF LAW
The criteria for an effective date of August 3, 2009, for entitlement to individual unemployability have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.156, 3.157, 3.159, 3.400 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran has asserted that he is entitled to an effective date of August 3, 2009 for his claim for TDIU. Specifically, the Veteran claims that he submitted a claim for TDIU on August 3, 2009 and not June 11, 2010. Upon review of the evidence of record, the Board finds that Veteran is entitled to an effective date of August 3, 2009 for his TDIU claim.
Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155.
On August, 3, 2009, the RO received a statement from the Veteran stating that he was service connected for PTSD and that was no longer able to work. Specifically, he asserted that the medications he was taking for his service-connected disability made him think and react slowly. He was unable to sleep through the night and has awakened beating the pillow as if it were a person. He asked to be re-evaluated for his disability.
The RO then sent a Duty to Notify and Assist letter to the Veteran on August 18, 2009. This letter explained to the Veteran that they were working on his claim for TDIU. The RO requested that the Veteran return the attached VA-Form 21-8940. The letter also stated that he had up to one year from the date of the letter to submit the information and evidence necessary to support his claim. Lastly, the letter stated that the date of claim was August 3, 2009.
In September 2009, the RO issued a rating decision denying the Veteran's claim for TDIU, because he had not submitted any evidence to support his claim. Specifically, he had not returned VA-Form 21-8940.
On June 11, 2010, the RO received a VA-Form 21-8940 to support the Veteran's claim for TDIU. On June 30, 2010, the RO sent the Veteran another Duty to Notify and Assist letter stating that they were working on his claim for TDIU. They treated his submission of VA-Form 21-8940 as a new claim and not evidence submitted within the one-year time period of the September 2009 rating decision.
The applicable regulation provides that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In such situations, the rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010).
The RO granted entitlement to TDIU in an August 2010 rating decision with an effective date of June 11, 2010; however, this is not the original date of claim. As the Veteran submitted new and material evidence within one year of the September 2009 rating decision, that rating decision did not become final. Accordingly, the date of claim is the date the RO received the original claim, August 3, 2009.
The Board agrees with the Veteran's contentions that his date of claim for TDIU was on August 3, 2009. As such, the effective date of the grant of his TDIU claim should be August 3, 2009 and not June 11, 2010. The Veteran clearly submitted a written claim for an increased evaluation and a claim for TDIU on August 3, 2009. He did submit evidence to support his claim within the one year time period and as such is entitled to an earlier effective date.
Therefore, based on a review of the entire record, and the applicable laws and regulations, it is the Board's conclusion that an effective date of August 3, 2009 for TDIU is warranted.
Duty to Notify and Assist
Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).
ORDER
Entitlement to an effective date of August 3, 2009 for individual unemployability is granted.
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs